State v. Swick

Decision Date01 June 2012
Docket NumberNo. 32,510.,32,510.
Citation2012 -NMSC- 018,279 P.3d 747
PartiesSTATE of New Mexico, Plaintiff–Respondent, v. Michael SWICK, Defendant–Petitioner.
CourtNew Mexico Supreme Court


Jacqueline Cooper, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Respondent.


CHÁVEZ, Justice.

{1} On the morning of January 21, 2006, Michael Swick, along with his cousin, Benito Lopez, and the victim, Alex Ogle, began a day of cruising and drinking alcohol in a borrowed Jeep. The three rode around for most of the day getting the Jeep stuck. Late in the afternoon, Swick and his cousin also consumed cocaine. They decided to walk because the Jeep was stuck and it was getting dark. Shortly thereafter, Swick's cousin returned to the Jeep to get warmer clothes.

{2} After getting a jacket from the Jeep, Swick's cousin walked back toward the place where he had left Swick and Ogle. When he arrived, he found Swick standing, holding a large 15–pound rock, with Ogle lying on the ground beneath him. Swick had stabbed Ogle and bludgeoned him on the head with the rock. Swick and his cousin walked from the crime scene and had agreed to steal a car as they approached the home of Carlos and Rita Atencio. Mrs. Atencio answered the door, and they told her that their Jeep was stuck. She let them in so that they could use the telephone. When they entered the house, Swick stabbed Mrs. Atencio, and both men continued to beat, stab, and slash her and her husband. Swick and his cousin left with $14.00 and a van owned by the Atencios.

{3} Swick was indicted with first-degree murder for Ogle's killing. The indictment also charged him with 25 additional counts for the offenses at the Atencio home, including conspiracies, attempted first-degree murders, aggravated batteries with a deadly weapon, aggravated burglaries with a deadly weapon, and aggravated burglaries based on the battery of Mr. and Mrs. Atencio.

{4} During the second day of trial, Swick had an outburst in court and had to be restrained by court security officers. Some of the jurors witnessed the incident. The trial court attempted to remedy the situation by extensively polling the jurors and asking whether they could be fair after the incident, to which all of the jurors answered yes. Swick moved for a mistrial, which was denied by the trial court.

{5} At the close of the State's case, defense counsel tendered an instruction to the trial court for voluntary manslaughter as a result of sufficient provocation and, in the alternative, an instruction for self-defense. The trial court declined to give an instruction for self-defense. The trial court did instruct the jury on voluntary manslaughter, concluding that it was for the jury to determine whether Swick acted with sufficient provocation. However, without objection, the trial court instructed the jury on second-degree murder, although it neglected to include “without sufficient provocation” as an element of the crime.

{6} The jury found Swick guilty of second-degree murder of Ogle as a step-down from first-degree murder and guilty of all of the remaining charges against him related to the Atencios. Swick appealed to the New Mexico Court of Appeals, raising issues regarding double jeopardy, jury instructions, and challenging the trial court's denial of his motion for a mistrial. The Court of Appeals upheld all of his convictions, holding that (1) Swick's convictions for two counts of attempted murder and two counts of aggravated battery with a deadly weapon did not violate the double jeopardy prohibition pursuant to State v. Armendariz, 2006–NMSC–036, ¶¶ 24–25, 140 N.M. 182, 141 P.3d 526;see State v. Swick, 2010–NMCA–098, ¶¶ 20–21, 148 N.M. 895, 242 P.3d 462; (2) Swick's convictions for one count of aggravated burglary (deadly weapon) and two counts of aggravated burglary (battery) did not violate the double jeopardy prohibition, Swick, 2010–NMCA–098, ¶¶ 28–29, 148 N.M. 895, 242 P.3d 462; (3) it was not fundamental error to issue an erroneous jury instruction on second-degree murder when subsequent proper instructions corrected the error, id. ¶¶ 7–8; (4) an instruction on self-defense was not warranted in this case, id. ¶¶ 17–18; and (5) the trial court did not abuse its discretion by denying Swick's motion for a mistrial, id. ¶ 34. We granted Swick's petition for writ of certiorari, and we (1) vacate both of Swick's convictions for aggravated battery with a deadly weapon and his two convictions for aggravated burglary based on battery because these convictions violate the constitutional prohibition against double jeopardy; (2) remand to the trial court for a new trial on the second-degree murder conviction because the instruction regarding second-degree murder was erroneous; (3) affirm the trial court's rejection of the self-defense jury instruction; and (4) affirm the trial court's denial of the motion for a mistrial. Accordingly, we affirm the Court of Appeals in part and reverse in part.


{7} After leaving the scene of Ogle's killing, Swick and his cousin decided to steal a car and ended up at the home of the Atencios. When they arrived they found several vehicles in the Atencio yard, but none were operable. Swick's cousin then knocked on the door, and Mrs. Atencio answered. They asked if they could come in and use the phone, to which Mrs. Atencio responded, “Yeah, come in.” As soon as she let them in the house, Swick rushed past his cousin and stabbed Mrs. Atencio in the back. Swick then went to Mr. Atencio, who was sitting on the couch, and began to beat and stab him. They left with $14.00 and a van owned by the Atencios.

{8} Swick was convicted of eleven felony counts arising from his conduct at the Atencio residence and contends that four counts must be vacated. He contends that the prohibition against double jeopardy was violated when he was convicted of (1) two counts of first-degree attempted murder and two counts of third-degree aggravated battery arising out of unitary conduct, and (2) two counts of aggravated burglary (battery) and one count of aggravated burglary (deadly weapon) arising out of unitary conduct. Regarding the first claim, the Court of Appeals affirmed Swick's convictions without reaching the merits, citing State v. Glascock, 2008–NMCA–006, ¶ 26, 143 N.M. 328, 176 P.3d 317, for the proposition that the Court of Appeals is bound by Supreme Court precedent established in Armendariz.Swick, 2010–NMCA–098, ¶ 21, 148 N.M. 895, 242 P.3d 462.

{9} The Court of Appeals also rejected Swick's second double jeopardy claim regarding the aggravated burglary convictions. The Court of Appeals assumed that the conduct underlying the two convictions was unitary and therefore limited its analysis to whether the Legislature authorized multiple punishments for aggravated burglary under different theories. Id. ¶¶ 25, 29. The Court of Appeals held that the Legislature authorized multiple punishments because NMSA 1978, Sections 30–16–4(B) (burglary involving a deadly weapon) and 30–16–4(C) (burglary involving battery) (1963) addressed different social evils that required separate punishments—to deter criminals from using deadly weapons in burglaries versus to address actual physical injury to persons during burglaries. Swick, 2010–NMCA–098, ¶¶ 26, 29, 148 N.M. 895, 242 P.3d 462. The Court of Appeals acknowledged that the same quantum of punishment is prescribed for each subsection, suggesting that separate punishments may be inappropriate.1Id. ¶ 29. Despite this acknowledgment, the Court of Appeals concluded that the Legislature intended multiple punishments. Id. ¶¶ 28–29.

{10} A double jeopardy challenge is a constitutional question of law which we review de novo. See State v. Gallegos, 2011–NMSC–027, ¶ 51, 149 N.M. 704, 254 P.3d 655. The Fifth Amendment of the United States Constitution prohibits double jeopardy and is made applicable to New Mexico by the Fourteenth Amendment. U.S. Const. amends. V & XIV, § 1; Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). It functions in part to protect a criminal defendant “against multiple punishments for the same offense.” State v. Gutierrez, 2011–NMSC–024, ¶ 49, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citations omitted). There are two classifications of double jeopardy multiple-punishment cases. The first is the double-description case, where the same conduct results in multiple convictions under different statutes. Gallegos, 2011–NMSC–027, ¶ 31, 149 N.M. 704, 254 P.3d 655. The second is the unit-of-prosecution case, where a defendant challenges multiple convictions under the same statute. Id. As will be explained below, Swick's first double jeopardy challenge is a double-description case, while his second is a unit-of-prosecution case.


{11} Double-description claims are subject to the two-part test set forth in Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). First we consider whether the conduct underlying the two convictions was unitary (the same conduct). If it is not, then there is no double jeopardy violation. If it is unitary, we consider whether it was the Legislature's intent to punish the two crimes separately. Id. at 13, 810 P.2d at 1233. In analyzing legislative intent, we first look to the language of the statute itself. State v. Frazier, 2007–NMSC–032, ¶ 21, 142 N.M. 120, 164 P.3d 1. If the statute does not clearly prescribe multiple punishments, then the rule of statutory construction established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) applies. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{12} Under Blockburger, “the test to be applied to determine whether there are two...

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